Wednesday, August 30, 2017

Lost in the Construction Zone

By Eric Segall

Last Friday, Mike posted an essay titled “How Determinate is
Originalism in Practice?” He essentially argued that the decisions of Justices
Scalia and Thomas suggest that originalism is less determinate than originalists contend because both Justices reached more conservative results than one would expect from a neutral application of the doctrine. Professor Larry Solum, a scholar associated with New Originalism, responded with
a four-part series taking issue with many of the points raised
in Mike's essay. Mike and I are both critics of originalism, although we do not agree on everything. Thus, this post speaks only for me. It is devoted solely to responding to the second part of Larry's response dealing with what he calls "public meaning and
underdetermination." This aspect of Larry's response is important because it implicates the critique of many scholars that New Originalism is just living constitutionalism by another name (speaking of names, because I can't bring myself to call Mike "Dorf" I will refer to Professor Solum as "Larry" for the sake of parity. I hope he doesn't mind).

The two key differences between New Originalism and Old
Originalism are 1) New Originalists emphasize that judges should search for the
original meaning of the text, not the original intentions of the authors; and 2)
the difference between “semantic and “legal” meaning. The "semantic" meaning
of the Constitution's text is its normal communicative content and is the proper
subject of constitutional interpretation. The legal effect of the text is sometimes
different, and is the object of constitutional construction. Where the semantic
and legal meaning clearly converge, judges must give effect to that meaning.
Constitutional provisions such as the President must be 35, or every state is
entitled to two senators, are examples where the semantic meaning and the legal
meaning are one and the same. Virtually no one suggests judges shouldn't be
bound by the original meaning of these kinds of clear constitutional provisions absent
dire emergencies or absurd results (not even Judge Posner or myself).

Larry's response to Mike that is relevant to this essay centers around how much of
constitutional law is "underdetermined" by the semantic meaning of the
text or historical analysis of that text. Solum claims that Mike (and other
critics of originalism) overstate the degree of indeterminacy. Larry says
that there are only “a very few open-textured constitutional provisions”
and “that the indeterminacy of the original public meaning of the
constitutional text has been greatly exaggerated.”

This claim raises an empirical question, but one does not have to
be a legal realist to suggest that, when talking about the universe of Supreme
Court constitutional cases, or even appellate level constitutional cases, the amount
of indeterminacy is quite large. Phrases like “freedom of speech”, “equal
protection”, “due process”, “unreasonable search and seizure”, and “establishment
of religion,” simply do not have clear semantic meanings, especially when they arise in
modern controversies. One of the major gaps in Larry’s theories, and those
of other New Originalists as well, is that they have failed to demonstrate that
semantic meaning is relevant to a significant number of litigated constitutional law cases. In fact, they haven’t even tried.

Larry does say that “that some significant underdeterminacy exists.”
When that occurs, judges must enter the “construction zone.” In that zone, Larry and other New Originalists concede that originalist sources will not be
able to dictate results, and judges must bring their normative values to the
case before them. Back in 2011, in a book-length debate with Professor Robert
Bennett, Solum recognized the inevitable critique this construction zone concept
would bring from non-originalists:

“What should
an originalist say about decision making within the construction zone? It might
be argued that the construction of [vague] provisions requires judges to rely
on their own values or beliefs about political morality and justice. If this
were the case, then it might follow that much of the originalists critique of
living constitutionalism would lose its force…. If originalists allow judges to
make law in the construction zone, it might be argued that the difference
between originalists and living constitutionalism is only a matter of degree.
Given the practical importance of the abstract, general and vague provisions
[of the Constitution]… living constitutionalists might well claim that the
originalist endorsement of the interpretation-construction distinction
effectively concedes the most important constitutional questions to
non-originalists.”

Larry responded to his own questions by setting forth three options. First, in the construction zone, Originalists could advocate for great deference to laws passed by the political process-a Thayerian type model of judicial review. This is a coherent response (and one that I embrace), but very few New Originalists, and certainly not Justice Scalia or Thomas, espouse it. In any event, Larry has never adopted it, and neither has the Court for any serious length of time.

Another possibility is to apply what Larry called in 2011 a “principle” approach whereby judges “attempt to derive guiding
purposes to search for the values that are immanent in the specific provisions
and overall structure of the Constitution.” Similarly, in his recent response to Mike, Larry pointed to Randy Barnett’s and Evan Bernick’s emphasis on the search for
the “spirit” of the constitutional text when judges are in the construction
zone.

In my blog post here,
I demonstrated that this search for “spirit” is far too open-ended to
distinguish the construction zone from living constitutionalism. The essence of
my argument was that “the ‘spirit’ of most constitutional provisions that lead
to constitutional litigation will be broad enough to justify virtually any
result a judge or justice wants to reach.” I have not found any writing of Larry's to support the idea that constitutional interpretation based on “principle” or “spirit”
leads to more determinacy than living constitutionalism. It takes much more than a summary statement
to make that case.

The third option that Larry mentioned in 2011
to provide more determinacy in the construction zone is the “original methods
originalism” of Professors Rappaport and McGinnis. They argue that judges today
should only use those interpretative methods used at the time of constitutional
ratification. This solution, however, hardly cures the indeterminacy problem. As
Professor Kurt Lash has argued
about original methods originalism:

The proper
methods of constitutional interpretation were not only under-resolved at the
time of the Founding, they were the subject of heated and on-going
debate…. Different founders proposed different methods of constitutional
construction, each reflecting a different normative theory of the new federal
Constitution…. This dispute cannot be resolved by fiat application of
interpretive methodology or recourse to an anachronistic reliance on the common
law; it requires the application of normative theory. This is not the result of
a temporary gap in our historical knowledge. It is history itself that tells us
that originalism cannot go all the way down.

Larry's reply in Part II
of his response to Mike simply does not rebut the critique of numerous scholars, such as Peter
Smith, Steve Griffin, Tom Colby, and myself, that the New Originalism’s "semantic-legal" and "interpretation-construction" distinctions make this form of originalism indistinguishable from pluralistic
theories of constitutional interpretation and living constitutionalism. In fairness, maybe Larry wasn't directly addressing this critique though his posts certainly raised the issue. Nevertheless, the stakes
of this disagreement are high given the efforts by Justice Scalia and Thomas,
as well numerous political officials, and a bevy of New Originalists (including Larry), to claim
a more determinate approach to constitutional law than that proposed by
scholars they claim embrace living constitutionalism (who are mostly left-of-center). But no New Originalist,
and certainly not Larry, has applied their theory to enough actual constitutional
law cases to support that claim.

As far back as 2011, in direct response to Larry, Professor Bennett wrote that “Solum assiduously avoids discussion of specific constitutional
problems.” I have suggested the same in prior posts, and Larry's reply is usually along the lines that theory is hard and he's still working on his. That's fair, but I might humbly suggest that broad claims of how the theory affects practice should then wait until practice is actually explained. This failure to discuss on the ground constitutional issues is generally true for other leading New Originalists.

In light of the absence in the literature of New Originalists applying their theory to actual cases, and the voluminous literature suggesting the New Originalism is no more constraining than living constitutionalism, what Larry wrote this week rings somewhat hollow: "The normative justifications for originalism (legitimacy and the rule of
law) will counsel methods of construction that minimize judicial discretion and
forbid judges from deciding specific constitutional issues on the basis of the
judge's ideological views and political preferences." Larry has not shown how his version of originalism will lessen the effect of ideological
views on judicial decision-making. Until he sets forth a comprehensive account
of how his theory applies to real-life litigated constitutional problems, or points to someone else who does, he cannot rebut the claims of many critics, including this author, that the New
Originalism is simply living constitutionalism by another name, and certainly no more determinate.

5 comments:

Baude and Sachs write, in a recent response to Judge Posner's criticisms of new originalism: "Without having done the research ourselves, we doubt (say) that the original Constitution let states impair contracts on claims of “economic emergency” – or that this power was ever lawfully conferred since. We likewise doubt the pedigree of modern cases on executive agreements; jury numbers or unanimity; counsel comment on failure to testify; one-person one-vote; diversity jurisdiction for D.C. citizens; “commerce” regulation of wholly intrastate activity; administrative adjudication of private rights; and maybe even commandeering state officers or Article III limits on standing. Maybe the cases are right despite our doubts, or at least tolerable under original doctrines of stare decisis. (Again, we haven’t done the research.) And maybe more, or more controversial, cases belong on that list. But the fact that originalism brings these cases into doubt, or even disrepute, shows that the theory has real bite."

The proof, of course, is in the pudding. And we don't as yet have the pudding. But at least you have some sense of where some new originalists think that the construction zone is either small or non-exiistent. Interestingly, there is no mention here of due process, equal protection, just compensation, freedom of speech, establishment of religion, unreasonable searches and seizures. So maybe the new originalist view is that there is greater determinacy precisely where you aren't looking. And then it's a matter of emphasis or gestalt. You are looking at words like "due" and "equal" and "just" and "freedom" and "unreasonable", where the new originalists apparently concede indeterminacy (though not Justice Scalia, who is not, I think, a consistent new originalist, as I believe you have argued before), whereas new originalists are looking at other words, such as "commerce among the several States" and "no law impairing the obligation of contracts", where they claim that there is greater determinacy than living constitutionalists accept.

I think this is a pretty good post, but there's a pretty long leap between noting Solum's acknowledgement of underdeterminacy and a role for construction and saying that his form of originalism is indistinguishable from living constitutionalism. That would only be true if the whole Constitution were indeterminate, and as Mr. Rickless says, that's just not the case, or at least New Originalists say it's not and point to lots of examples with which you don't deal, instead preferring to list the obvious counterexamples. (Even there, originalists may see more determinacy than you suppose. I know that lots of originalists believe that the equal-protection clause merely requires equality within some limited sphere of "protection," which they think has a fairly determinate meaning, though they might move a lot of the work it does currently to privileges and immunities.)

I don't think, also, that it's true that there isn't much literature applying new originalism to cases. Just based on my checking Solum's blog now and then, or Jotwell, there seems to be literature applying new originalism to the emoluments clause, recess appointments clause, Second Amendment, Eighth Amendment, the equal protection clause (on multiple issues), the privileges and immunities clause, the natural-born citizen clause, full faith and credit clause, the Sixth Amendment, and much else I'm forgetting. Nor is it as if none of that matters or is litigated, obviously.

Other than that, I would appreciate it if you linked to articles when you mentioned them so that I could evaluate the "voluminous scholarship" suggesting that new originalism is no more constraining than living constitutionalism. The mere existence of voluminous arguments to that effect, given the flimsiness of arguments that I've recently seen to that effect, as well as the existence of voluminous argument to the contrary, does nothing at all for me. Unfortunately I don't know how to post links in a comment or I would link to some of the examples I mentioned of applied originalist scholarship, but I'm sure someone who really knows the literature like Mike Rappaport could get you a long list of some of the better articles in the genre to look at. I think that reviewing that scholarship would be pretty essential to making your claims about originalist constraint vs. living-constitutionalist constraint.

Finally, I do think it a little absurd to say that Solum must produce a "comprehensive" account of how his theory applies to real-life problems or point to someone who has produced a comprehensive account of that sort, as if one originalist scholar is supposed to produce an encyclopedia of original meanings on hundreds of fighting questions in constitutional law. Different originalists are interested in different issues and to evaluate the constraint imposed by their theory in general, one therefore must read a lot of different originalists' work.

Perhaps we need a comparison of the testing of legal theories with the testing of theories in the hard sciences. There are many competing and conflicting legal theories of originalism. SCOTUS decides less than 100 cases per year. Not all of such cases involve serious constitutional issues. SCOTUS guides/limits the lower federal courts. The testing of the various legal theories of originalism is very limited in the federal judiciary. As to the testing of legal theories of originalism in legal (and political science) academia, I would suggest extension of Mike Dorf's concept of big C- Conservatism in the courts to both academies. Legal theories are more like hypotheses.

With respect to Larry Solum's construction zone for indeterminate constitutional provisions to be determined by the "spirits," would he conjure the "spirits" as of the time of ratification or as of the time of determining the construction zone meaning of the indeterminate provision?

I cited a book from 2011 that said Larry avoided talking about real cases. Below are some articles for you (you'll have to cut and paste). Also, my point is that so far in the little scholarship there is applying New Originalism to real cases, and there is very little, it turns out New Originalism is very similar to non-originalism. Baude and Sachs just last night on twitter defended their claims that both Brown and Lawrence use originalist arguments. Of course that is wrong. Calabresi and Somin filed an amicus brief in Obergefell claiming that SSM bans are invalid under the ORIGINAL MEANING of the 14th (what?). And the list goes on where New Originalism sounds like non-originalism. But, my point about Larry is rock solid. Other than Brown and Heller, he has not applied his doctrine to actual cases, or if he has, I can't find it.